Debeck relied on a fax sent to T&E on 25 March 2001, which Debeck submitted contained all the relevant terms of the agreement and was thus sufficient to constitute written evidence of the agreement. Her Honour Judge Kirkham rejected this submission on two counts. First, the fax did not set out or record all of those matters on which Debeck itself relied on in pursuing its claim. For example, the fax did not explain even in summary terms the scope of the work to be undertaken; it was not clear whether materials were to be supplied or not; and the sequencing and programming of the work was also unclear. Second, a director of T&E gave evidence that there were further terms of the contract between the parties upon which T&E relied which were not recorded in the fax. For example, these matters included references to the specification or standard to which work was to be carried out, matters as to quality and issues as to the timing during which work was to be undertaken. Her Honour Judge Kirkham concluded that it would be quite wrong that a party should be entitled to rely upon a document which it was said contained all of the relevant terms in circumstances where there were additional material terms which the other party says were agreed orally.
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Here Her Honour Judge Kirkham followed the Court of Appeal decision in RJT Consulting Engineers Ltd v. DM Engineering (Northern Ireland) Ltd (CILL 2002, 1841) finding that where there is an oral agreement between the parties, it is necessary for the purposes of section 107 of the HGCRA for all the terms of the agreement material to the issue or issues in dispute to be clearly recorded in writing. Her Honour Judge Kirkham suggested that in circumstances such as this, a party should seek to clarify by way of a letter the terms which he believes have been orally agreed and invite the other party to agree that those are indeed the terms of the agreement. In this way a party would then have the benefit of the protection of section 107 of the HGCRA.